Bill Unfair To Asbestos Sufferers

January 18, 2000|By ROBERT T. HATTEN Guest Columnist

The chutzpah of some asbestos manufacturers knows no limits.

Beginning in the 1930s, the asbestos industry knew that breathing asbestos dust could cause asbestosis, a disabling lung disease, and cancer. Their top executives also knew that these diseases did not develop until 20 years or more after the first exposure to asbestos.

Simply put, they knew that unless shipyard workers and other asbestos users were told about the dangers of breathing asbestos, it would be too late to warn them once they became sick. So, did they warn? Of course not. To have done so would have put at risk a multibillion-dollar industry. Instead, they misled the public and hoped that the workers would never figure it out.

Now, after more than 100,000 Americans (including more than 1,000 Virginia shipyard workers) have died from the industry's outrageous misconduct, a well- financed group of asbestos companies and their sympathizers have proposed a bailout bill titled the "Fairness in Asbestos Compensation Act." Predictably, this bill is not fair and it does not ensure that workers diagnosed with asbestos disease will receive any compensation for their injuries.

With a straight face, the bill's sponsors - which include the euphemistically named "Coalition for Asbestos Resolution" - say that their goal is to provide "fair, efficient and prompt" compensation to asbestos victims.

Is it fair to exclude from compensation more than half of all asbestos victims who would be compensated under existing law by letting the doctors for the asbestos industry define who is sick and who is entitled to sue?

Is it fair to apply this new law retroactively and to permit asbestos manufacturers to void thousands of settlement agreements with asbestos victims, so that the industry can receive a windfall of hundreds of millions of dollars?

Is it efficient to pre-empt all state laws and procedures that have been created and used to resolve asbestos claims effectively, and to replace them with a new federal bureaucracy that is so complicated and burdensome that most asbestos victims will simply give up or settle for peanuts?

Is compensation likely to be prompt when the proposed law contains no statutory duty to pay any asbestos victim any specific amount of money at any specific time?

Another alleged goal of the bill is to eliminate the "inequities and delays" of the state court system. From 1983 to 1992, there were 300 asbestos trial settings per year in Virginia alone. Throughout the nation, this litigation was being fiercely resisted by the asbestos companies, who preferred to spend more than half of their insurance coverage on the fees of their defense attorneys, rather than compensation for asbestos victims.

By 1993, however, a large number of the major manufacturers and suppliers of asbestos started to enter into comprehensive settlement agreements. These agreements provided a simple and nonadversarial alternative to litigation that dramatically reduced transaction costs and effectively brought most of the litigation to an end.

Nationwide, there were only 55 asbestos trials in 1998, while tens of thousands of cases settled. In Virginia, we have not had an asbestos jury trial for the past seven years, but virtually every claim with a legitimate diagnosis and exposure history has been promptly and fairly settled.

A major beneficiary of the settlements have been Virginia employers, like the local shipyards, because every dollar recovered from the asbestos manufacturers reduces the responsibility of the employer to pay workers' compensation.

If a worker can't sue the asbestos manufacturers because he is not "sick enough," he may still receive - under state or federal law - workers' compensation. The asbestos manufacturers will be off the hook, but the cost of workers' compensation insurance to Virginia employers will skyrocket.

The problem is that GAF Corp. (the main proponent of the bill) and a handful of asbestos manufacturers refuse to reach comprehensive, fair settlements with asbestos victims, and they are now trying to forge a better deal for themselves in the U.S. Congress. By spending many millions of dollars on lobbyists, campaign contributions, and false advertisements, these industrial giants are trying to make corporate greed look "fair."

U.S. Reps. Bobby Scott, D-Va., and Herb Bateman, R-Va., have not been fooled. Neither has U.S. Sen. Charles Robb. They have joined their constituents - 3,000 local asbestos victims, major Virginia employers and the Virginia Peninsula Chamber of Commerce - in bipartisan opposition to the asbestos manufacturers' bailout bill.

These three veteran legislators have seen through the golden fleece and recognized this as what it truly is: old-fashioned, health robber-baron, special-interest legislation.

Hatten is managing partner of the law firm Patten, Wornom, Hatten & Diamonstein in Newport News. He has represented shipyard workers with asbestos-related lung diseases since 1975.